Hearing of the Senate Judiciary Committee on "Exercising Congress's Constitutional Power to End a War"

COMMITTEE STATEMENT: "EXERCISING CONGRESS'S CONSTITUTIONAL POWER TO END A WAR"

Sen. Orrin G. Hatch (R-Utah) today spoke at the Senate Judiciary Committee hearing titled "Exercising Congress's Constitutional Power to End a War," criticizing the political brinksmanship that undermines the efforts of military personnel serving abroad. Hatch's prepared remarks follow.

Words have meaning and titles send messages. The title of today's hearing, when it refers to Congress's constitutional power to end a war, can be taken at least two ways.

To some, it might sound like an assertion of an explicit power directly to terminate a war or to declare it over.

If that is its message, it is incorrect. The Constitution grants no such power.

The convention that framed our Constitution rejected empowering Congress to make war in favor of declaring war. Similarly, that convention unanimously rejected an amendment that would have granted Congress the power to declare peace.

So the idea that Congress has some explicit power directly to end a war or to declare peace does not come from the Constitution.

The title of today's hearing might instead be saying that the Constitution grants powers to Congress which might be used to help bring a war to an end.

In general, that is a more defensible proposition but where we end up depends on where we start.

I believe we must start with and be guided by the Constitution.

Not any constitution or a constitution invented to give us what we want at the moment, but the real Constitution.

The real Constitution is built on the principle of the separation of powers, which James Madison said has more intrinsic value than any other political truth.

Only Congress can declare war, but while a declaration of war is necessary to define certain legal relationships between nations or with our own citizens, it is not necessary for the United States to engage in armed conflict.

Congress has the authority to raise and support armies, but while this relates to the existence of the armed forces, it does not extend to commanding them in conflict or dictating battlefield tactics.

Some politicians here in Washington are wont to say what they would have done about authorizing force in the war on terror if they knew then what they know today.

Neither our personal nor political lives work that way.

We have to do our best today based on what we know and what we have available to us today.

It seems to me that the separation of powers leaves those who oppose the war with two options.

They can either try to defund our troops or they can add to the overall debate by publicly expressing their views.

In exercising either of those options, I think we must consider not only our policy objectives but also the message we send by our actions.

We all know what the polls say about general support for that portion of the war on terror currently taking place in Iraq.

We all saw on the news the public demonstrations, as well as the vandalism, taking place here in Washington last weekend.

But in addition to sending a message to the general public and to specific political constituencies, we must also consider the message we send to our troops.

Some who say they support our troops turn around and talk about defunding them.

Or others talk about splitting appropriations hairs to fund certain troops but not others.

The message to our troops is that we no longer support them or their mission.

We have authorized whatever force is necessary to fight this war, and then some talk about de-authorizing certain uses of that force.

The message to our troops is that we no longer support them or their mission.

Some who voted to confirm General David Petraeus to lead the troops in Iraq turn around and publicly attack the strategy that he developed.

The message to our troops is that we no longer support them or their mission.

The Constitution distinguishes between a singular declaration of war, which it assigns to Congress, and the active engaging in or levying war, which it assigns to the President as commander in chief.

Disagreement with how the President uses his power does not give Congress the power to step in and take over.

That would be the antithesis of the separation of powers.

I realize that it is easy to acknowledge the President's power when we agree with how he uses it.

The real test is when we disagree.

Then the American people will see whether there are some principles on which we in this body will stand or whether, in the end, it is just politics after all.

http://hatch.senate.gov/index.cfm?FuseAction=PressReleases.Detail&PressRelease_id=1726&Month=1&Year=2007